NOTE: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

PETER ADELEKE,

Petitioner,

v.

DEPARTMENT OF HOMELAND SECURITY,

Respondent.

______________________ 

2013-3161

______________________ 

Petition for review of an arbitrator’s decision by 

James M. Klein.

______________________ 

Decided: January 8, 2014

______________________ 

PETER ADELEKE, of LaVerne, California, pro se.

JOSEPH E. ASHMAN, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, for respondent. With him 

on the brief were STUART F. DELERY, Assistant Attorney 

General, BRYANT G. SNEE, Acting Director, and FRANKLIN 

E. WHITE, JR., Assistant Director.

______________________ 

Before LOURIE, DYK, and WALLACH, Circuit Judges.
2 ADELEKE v. DHS

PER CURIAM. 

Peter Adeleke (“Adeleke”) petitions for review of an

arbitrator’s decision denying his request for attorney fees

after he successfully challenged an action by the United 

States Customs and Immigration Service (“USCIS”) to 

remove him from federal service. Because the arbitrator’s 

decision is in accordance with law and was supported by 

substantial evidence, we affirm.

BACKGROUND

Adeleke is employed as an Immigration Officer at

USCIS and his duties involve the administration of benefits. During a routine background investigation in 2011, 

Adeleke responded to a questionnaire that he was not 

living with a cohabitant and that he did not have “close 

and/or continuing contact with foreign nationals within 

the last 7 years” with whom he was “bound by affection, 

influence, and/or obligation.” Resp’t’s App. at 22. In 

December 2011, USCIS began investigating whether

Adeleke failed to disclose that he had cohabited with a 

foreign national who was not lawfully admitted into the 

United States, which Adeleke denied in a sworn statement in February 2012. However, based on evidence 

obtained from its investigation, USCIS concluded that 

Adeleke had cohabited with such a foreign national. The 

agency’s Table of Penalties provides that the penalty for a 

first offense of lack of candor ranges from a reprimand to 

removal. Id. at 39–40. Accordingly, USCIS removed 

Adeleke from federal service in September 2012. 

Adeleke challenged the removal action and sought arbitration of the dispute. During a hearing before an 

arbitrator, Adeleke admitted that he had cohabited with 

the foreign national and lied to USCIS about it. Id. at 26. 

In April 2013, the arbitrator issued a decision finding that 

USCIS had a sufficient basis and a legitimate interest in

disciplining Adeleke for lack of candor, but the arbitrator 

mitigated the penalty to a reprimand because Adeleke’s 
ADELEKE v. DHS 3

“lack of candor [did] not appear to have any direct bearing 

on his job duties which involve the management of benefits.” Id. at 30. The arbitrator ordered that Adeleke be

reinstated to his previous position with a full restoration 

of seniority, back pay, and reimbursement of any lost 

fringe benefits. Id. at 31.

Adeleke then submitted a request for attorney fees, 

asserting that he was entitled to a fee award because 

(1) USCIS initiated the removal action in bad faith, and

(2) USCIS knew or should have known that it would not 

prevail on the merits when it brought the action. The 

arbitrator denied the request under both theories. Id. at 

17–18. The arbitrator reasoned that “[t]he Agency had a 

legitimate interest in disciplining the Grievant for his 

lack of candor,” that “the Agency completed a thorough 

investigation, and devoted significant resources to pressing the charges against the Grievant because, ultimately, 

the Grievant lied,” and that “there were significant tax 

dollars spent in this investigation as a result of the 

Grievant’s conduct.” Id. The arbitrator thus concluded 

that USCIS did not initiate the removal action in bad 

faith and did not know and should not have known that it 

would not prevail in removing Adeleke. The arbitrator 

denied Adeleke’s subsequent request for reconsideration. 

Adeleke petitions for review by this court. 

DISCUSSION

We review a decision of an arbitrator “in the same 

manner” as a decision by the Merit Systems Protection 

Board (“the Board”). 5 U.S.C. § 7121(f). The scope of our 

review in an appeal from a Board decision is limited. We 

can only set aside the decision if it was “(1) arbitrary, 

capricious, an abuse of discretion, or otherwise not in 

accordance with law; (2) obtained without procedures 

required by law, rule, or regulation having been followed; 

or (3) unsupported by substantial evidence.” 5 U.S.C. 

§ 7703(c); See Briggs v. Merit Sys. Prot. Bd., 331 F.3d 
4 ADELEKE v. DHS

1307, 1311 (Fed. Cir. 2003). Thus, we will uphold an 

arbitrator’s denial of attorney fees “unless that decision 

was arbitrary, capricious, an abuse of discretion, or otherwise unlawful, procedurally deficient, or unsupported 

by substantial evidence.” Dunn v. Dep’t of Veterans 

Affairs, 98 F.3d 1308, 1311 (Fed. Cir. 1996). A decision is 

supported by substantial evidence “if it is supported by 

such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.” Brewer v. U.S. 

Postal Serv., 647 F.2d 1093, 1096 (Ct. Cl. 1981) (internal 

quotation marks omitted). Moreover, an arbitrator has 

considerable discretion in determining whether an award 

of attorney fees is warranted in the interest of justice and 

we accord great deference to such a decision. Dunn, 98 

F.3d at 1311; see also Grubka v. Dep’t of Treasury, 924 

F.2d 1039, 1041 (Fed. Cir. 1991); Sterner v. Dep’t of Army, 

711 F.2d 1563, 1571 (Fed. Cir. 1983).

Adeleke does not challenge the arbitrator’s finding 

that USCIS did not initiate the removal action in bad 

faith. Adeleke asserts, however, that USCIS should have 

known that it would not prevail in removing him. Adeleke argues that under Lambert v. Air Force, 34 M.S.P.R.

501 (1987), “[t]he only thing that matters . . . is whether 

[USCIS’s] chosen penalty was sustained after a hearing, 

and whether the reasons for mitigation of the penalty 

were known to the Agency before they took the action.” 

Reply Br. 4. Adeleke contends that USCIS had known

that his job duties only involved the administration of 

benefits, which was ultimately the basis that the arbitrator mitigated his penalty. Adeleke also argues that the 

arbitrator improperly considered the expenditure of tax 

dollars in the investigation conducted by USCIS. 

The government responds that the arbitrator correctly 

concluded that USCIS did not know and should not have 

known that its removal action would be unsuccessful. 

The government argues that USCIS expended significant 

resources in investigating Adeleke’s false statements and 
ADELEKE v. DHS 5

in seeking to remove him, which demonstrated that 

USCIS had believed that its action would be successful. 

The government contends that when USCIS removed 

Adeleke, there was no authority mandating that removal 

for giving false statements would be inappropriate when 

the false statements did not directly relate to an employee’s job responsibilities. The government maintains that 

USCIS guidelines placed removal within the range of 

appropriate penalties. The government argues that we 

have rejected a rule that the successful mitigation of a 

penalty creates a presumption for awarding attorney fees. 

We agree with the government. An employee challenging an agency’s adverse employment action may 

recover reasonable attorney fees if the employee is a 

prevailing party and the payment of attorney fees is 

warranted in the interest of justice. 5 U.S.C. 

§§ 5596(b)(1)(A)(ii); 7701(g). “[M]itigation of an employee’s punishment may qualify the employee as a prevailing 

party.” Dunn, 98 F.3d at 1311. To determine whether 

attorney fees are warranted in the interest of justice, we 

consider factors including “[w]hether the agency knew or 

should have known that it would not prevail on the merits 

when it brought the proceeding.” Id. at 1311–12 (citing 

Allen v. U.S. Postal Serv., 2 M.S.P.B. 582, 592–93 (1980)

(the fifth Allen factor)). 

The Board in Lambert stated that “fees will generally 

be warranted under [the knew or should have known] 

category when all of the charges are sustained and yet the 

Board mitigates the penalty imposed, unless the Board’s 

decision to mitigate is based upon evidence that was not 

presented before the agency.” Lambert, 34 M.S.P.R. at 

507. “Since Lambert, [however,] the Board has properly 

rejected any per se rule in favor of fees in cases where the 

charges are sustained but the penalty is mitigated” and 

we have specifically rejected “a presumption that fees are 

warranted in such cases.” Dunn, 98 F.3d at 1313. We 

have held that “penalty mitigation alone does not create a 
6 ADELEKE v. DHS

presumption in favor of satisfaction of any of the Allen

factors.” Id. (“A presumption of fees upon mitigation of a 

penalty runs counter to the statutory requirement that 

the employee show that the interests of justice warrant an 

award.”).

Accordingly, the arbitrator’s mitigation of the penalty

of removal to a reprimand does not create a presumption 

that an award of attorney fees is warranted in the interest of justice. The arbitrator properly considered relevant 

evidence to determine whether the fifth Allen factor was 

met, i.e., whether USCIS knew or should have known that 

it would not prevail in the removal action. The arbitrator 

noted that USCIS conducted a careful investigation and 

concluded that Adeleke gave false statements in responding to the questionnaire and during the investigation by 

USCIS, which Adeleke admitted after his removal. Under 

USCIS guidelines, removal was within the range of penalties for giving false statements. Substantial evidence 

thus supports the arbitrator’s finding that USCIS did not 

know and should not have known that it would not prevail in the removal action. Given that finding (and the 

admitted lack of bad faith), the denial of fees is in accordance with law. 

We have considered Adeleke’s remaining arguments 

and conclude that they are without merit. For the foregoing reasons, the decision of the arbitrator is affirmed.

AFFIRMED

COSTS

No costs.